Kartavykh v. Clackamas County

Under Clackamas County Zoning and Development Ordinance 1307.16(K)(2)(b), a decision based on inconsistent testimony is different than a decision based on a “mistake of material fact,” and does not meet the refiling exception.

Petitioners appealed a county hearings officer decision that denied their renewed application for verification of a nonconforming use. Petitioners purchased the property in 2007, and in 2014, submitted an application to the county for verification and alteration of their nonconforming use of the property. The county denied the application. Planning staff relied on testimony by neighbors in making their determination. Petitioners refiled the same application in 2016, which was denied on the grounds that the same or substantially similar application may not be submitted within two years of the final decision of the first application. Petitioners asserted that two exceptions within the Clackamas County Zoning and Development Ordinance (ZDO) applied to their application. Both the planning director and the land use hearings officer disagreed.

LUBA determined that petitioner’s third assignment of error was aimed at the correct decision, which was the 2016 decision rejecting petitioners’ request to resubmit the same application under ZDO 1307.16(K)(2)(b), less than two years after the initial denial. Petitioners specifically argued that the 2014 decision was based on a “mistake in material fact” since, according to petitioners, some of the information was false. A decision made on the grounds of a “mistake in material facts” is a refiling exception, which would allow petitioners to refile the same application within the two-year window that is normally prohibited. The hearings officer noted that even though there were some inconsistencies in the testimony offered by neighbors, the testimony fell short of being demonstrably false. LUBA agreed with the hearings officer’s interpretation that a decision based on inconsistent testimony is not the same as a decision based on “a mistake in material facts.” LUBA concluded that petitioners failed to establish that the decision was based on a misconstruction of ZDO 1307.16(K)(2)(b). AFFIRMED.